Trial Magazine

In its 2019 Term, the U.S. Supreme Court was presented with multiple petitions for certiorari, supported by ideologically diverse groups, involving challenges to qualified immunity in continued attempts to scale back the judicially created doctrine that prevents law enforcement and other government officials from being held liable when they harm or kill people.

Qualified immunity, which the Court established, shields “government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”¹ The catch? To show that a right is “clearly established,” the victim of an official’s harmful conduct must point to factually identical case law in which a court has ruled that the exact same conduct is illegal or unconstitutional. If no such case exists, qualified immunity prevails, no new case law is created, and the cycle continues. As a result, even victims with proven constitutional violations often have no recourse. To date, the Supreme Court has remained steadfast in its refusal to overturn or even address the doctrine.

Multiple cert petitions denied. Hopes that the right qualified immunity case would catch the Court’s attention this term were dashed when it denied cert in multiple cases.² In one case, Baxter v. Bracey, a police dog bit the plaintiff after he surrendered with his hands in the air; he brought an action for excessive force against the officers involved.³ The trial court denied the defendants’ motion for summary judgment, which was based on qualified immunity; however, the Sixth Circuit reversed and ruled that the plaintiff’s claim should be dismissed because the officers’ conduct did not violate clearly established law.⁴

In another case, Corbitt v. Vickers, a deputy sheriff ordered six children at gunpoint to lie on the ground and then shot one of them, a 10-year-old, while attempting to shoot a pet dog.⁵ The Eleventh Circuit granted qualified immunity to the deputy sheriff, explaining that no prior case law involved the same “unique” facts of the case.⁶

The Supreme Court denied cert in both cases on June 15. Justice Clarence Thomas dissented in Baxter, expressing continued “strong doubts about our §1983 qualified immunity doctrine.”⁷ But qualified immunity remains intact and prevents plaintiffs and victims of misconduct from obtaining the justice they deserve. AAJ has filed or signed on to six amicus briefs in the last two years alone in support of these and other qualified immunity cert petitions urging the Court to narrow or overturn the doctrine.⁸

In recent years, the Court has refused to accept for review many qualified immunity cases with egregious facts.

For example:

• While responding to a 911 call, within seconds of encountering a man, an officer released a service dog to attack the man and almost immediately began shooting at him. The officer initially shot the man five times, breaking his arms and jaw and leaving bullet holes in his chest. The officer shot twice more into his back as he lay on the ground facedown.⁹
• Police tased a woman who was seven months pregnant three times in less than one minute for simply refusing to get out of her car during a routine traffic stop. Her 11-year-old son was in the backseat, and she told him to get out of the car. After learning that the woman was pregnant, the officers had a discussion about the best location on her body to tase her.¹⁰
• Police were searching for a suspect who was wearing a brown shirt and had a gun. They saw a mentally impaired 25-year-old riding a bicycle, wearing a blue jacket, and carrying a toy gun. They fired at him 17 times (four of which hit him), chased him down, and tased him.¹¹

Beyond police misconduct. While the conversation surrounding qualified immunity often focuses on police brutality and police misconduct, the doctrine reaches even further. For example, pending before the Court is a cert petition in Taylor v. Riojas, which involves the mistreatment of an inmate placed in deplorable conditions.¹² The plaintiff, who needed mental health care, was instead placed in a cell in the prison psychiatric unit that was covered in human waste. Despite his complaints, he was not moved until three days later, when he was transferred to a cell with no bed and a clogged drain and was forced to sleep in overflowing sewage for days.

He brought a §1983 claim against the correctional officers, but the Fifth Circuit held that although there was evidence that the plaintiff’s Eighth Amendment rights had been violated, qualified immunity barred his claims.¹³ AAJ signed on to a joint amicus brief with a coalition of ideologically diverse groups in support of the cert petition, which likely will be decided in the Court’s October 2020 Term.¹⁴

Plaintiffs, and the lawyers who represent them, are faced with many obstacles because of qualified immunity. The Court-created doctrine generally means that victims do not have a judicial remedy to hold offenders accountable when that offender is a government official, such as law enforcement personnel.

Should the Court take on qualified immunity, it could result in abandonment of the doctrine and allow victims of misconduct by government officials to readily defend their rights under the law.

Amy Brogioli is AAJ’s associate general counsel and can be reached at amy.brogioli@justice.org. 

Notes

1. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For more on qualified immunity, see 10 Things to Know Before Taking §1983 Excessive Force Cases by Matthew J. Kita on p. 19.
2. Cooper v. Flaig, 779 F. App’x 269 (5th Cir. 2019), cert. denied, 2020 WL 3405859 (U.S. June 22, 2020); Baxter v. Bracey, 751 F. App’x 869 (6th Cir. 2018), cert. denied, 140 S. Ct. 1862 (2020); Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019), cert. denied, 2020 WL 3146693 (U.S. June 15, 2020); Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019), cert. denied, 2020 WL 3146691 (U.S. June 15, 2020); Winzer v. Kaufman Cty., Tex., 916 F.3d 464 (5th Cir. 2019), cert. denied, 2020 WL 3038295 (June 8, 2020); Clarkston v. White, 943 F.3d 988 (5th Cir. 2019), cert. denied, 2020 WL 2515530 (U.S. May 18, 2020); Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019), cert. denied, 2020 WL 2515813 (U.S. May 18, 2020); Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019), cert. denied, 2020 WL 2515455 (U.S. May 18, 2020).
3. 751 F. App’x at 870.
4. Id. at 873.
5. 929 F.3d at 1308.
6. 929 F.3d at 1316.
7. 140 S. Ct. at 1865.
8. Read more at www.justice.org/amicusbriefs.
9. Mason v. Faul, 929 F.3d 762, 763 (5th Cir. 2019), cert. denied, 2020 WL 3146722 (June 15, 2020). 
10. Brooks v. Daman, 661 F.3d 433 (9th Cir. 2011), cert. denied, 132 S. Ct. 2682 (2012).
11. Winzer, 916 F.3d at 468–69.
12. Taylor v. Stevens, 946 F.3d 211 (5th Cir. 2019), petition for cert. filed sub nom. Taylor v. Riojas, 2020 WL 2095045 (Apr. 24, 2020).
13. Taylor, 946 F.3d at 227.
14. Read the brief at www.justice.org/amicusbriefs.